University of the Pacific Scholarly Commons

McGeorge School of Law Global Center for The Promise and Perils of an Business and Development Annual Symposium of Property — March 2015

Mar 6th, 11:00 AM - 12:30 PM

Panel 2: Intellectual Property

Josef Drexl Max Plank Institute for Innovation and Competition

Margo Bagley School of Law

Irene Calbodi Marquette University Law School

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Drexl, Josef; Bagley, Margo; and Calbodi, Irene, "Panel 2: Intellectual Property" (2015). McGeorge School of Law Global Center for Business and Development Annual Symposium. 3. https://scholarlycommons.pacific.edu/global-center-symposium/march-2015/event/3

This Event is brought to you for free and open access by the McGeorge School of Law Symposia and Conferences at Scholarly Commons. It has been accepted for inclusion in McGeorge School of Law Global Center for Business and Development Annual Symposium by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Josef Drexl, Managing Director, Max Planck Institute for Innovation and Competition and Honorary Professor, University of Munich

Synopsis: Between Propertization and Regulation: How a Fundamental Rights Approach Could Solve the Tension

Both nationally and internationally, intellectual property rights are in dispute. Right holders rely on the very concept of “property” to claim ever higher levels of protection. Critics argue that IPRs are nothing more than a particular form of market regulation that pursues specific societal goals. Both sides are right and wrong at the same time. On the one hand, there is no doubt that IP legislation creates property rights of individuals, but these rights also pursue public interest goals. The latter also seems to be accepted by proponents of strong protection, since they regularly justify their claim to strengthen IP protection by relying on the incentive-rationale of intellectual property. Yet this rationale cannot justify a propertization of intellectual property without limits, since too much protection may produce dysfunctional effects. Professor Drexl will rely on recent case- law from the Court of Justice of the European Union (CJEU), which nowadays often analyses IP disputes against the backdrop of the Charter of Fundamental Rights, to explain that a constitutional analysis can indeed be used very fruitfully to achieve and develop a more balanced system of IP protection without having to reject the property concept as such. Unfortunately, such a constitutional framework is not available on the level of international IP law, which therefore can easily be used by right holders to pursue their “propertization agenda”. Rightly understood, the constitutional property concept argues for a fundamental reform of international IP law.

13 Margo A. Bagley, Hardy Cross Dillard Professor of Law, University of Virginia School of Law

Synopsis

Professor Sprankling’s identification and analysis of an emerging international right to property is an important and compelling contribution to the various strains of property literature domestically and globally. The trends identified in the book and their likely implications are, in many cases, observable; but whether the rise of such a right is a good thing, at least in relation to intellectual property, is far from clear.

The global expansion and strengthening of rights associated with intellectual property (IP), while beneficial for some, has continuing unfortunate consequences for many in developed, emerging, and developing economies. Experiences with the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property (TRIPS), the ongoing difficulties of the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge, and Folklore, and a wealth of national distinctions and counterpoints to the canonical IP narrative, all suggest the need for a nuanced and cautious view of the wisdom and efficacy of promoting IP harmonization as part of an international right to property.

14 Irene Calboli, Professor of Law, Marquette University Law School & Visiting Professor, Faculty of Law, National University of Singapore

Synopsis: Are Trademarks Property? The International Intellectual Property Debate on Trademark Transactions

Trademarks have traditionally been considered as a "different type" of intellectual property rights compared to patents and copyrights, particularly in common law countries. In her presentation, Professor Calboli will address one of the pending questions in international trademark law, namely the national variations as to the nature of trademark rights, and the implication of these variations in trademark practice. In other words, can trademarks be considered property, similar to patents and copyrights? Positions in this respect vary based on national jurisdiction, and these variations are recognized in the compromising text of the international provisions on trademarks. In the , for example, trademarks are not commonly seen as property rights, despite the "trade in trademarks" that frequently occurs in trademark practice. At the opposite side of the spectrum, several countries do recognize property rights in trademarks, particularly registered trademark. In her presentation, Professor Calboli will consider the implications of this lack of international harmonization with special focus on the area of trademark transactions.

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